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The Association of Participating in a Summer Prelaw Training Program and First-Year Law School Students’ Grades
Get PDFThis study estimates the association of participation in a nine-week online educational program to prepare students for post-graduate (juris doctorate) education and law school grades. We collected registrar data from 17 U.S. law schools for participants and non-participants from the same year and a prior year. We compared first-semester law school grades between participating and non-participating students weighted by propensity scores. Course participation was associated with improved first-semester grades in a keyed course (Contracts Law) and overall grade point average. According to pre- and post-survey responses, a substantial portion of those who completed the program reported feeling more prepared for law school
Roberts\u27s Revisions: A Narratological Reading of the Affirmative Action Cases
Get PDFIn a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: Does the [flaw [n]eed a [n]arratology? 5 In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.6 After highlighting that how a story is told can make a difference in legal outcomes, Brooks encouraged legal actors to talk narrative talk and study perspectives of telling. 7 He invited lawyers and legal scholars to consider in their analyses of opinions who sees and who tells, what is the explicit or implicit relation of the teller to what is told, and how cases come to the law and are settled by the law. 8 According to Brooks, the more that lawyers begin to apply a narratology to the law, the more lawyers will be able to see the constructedness of narratives in opinions - to understand how they are put together and what [lawyers] can learn from taking them apart. 9 Similarly, he argued, the more lawyers accepted that the study of narrative in the law demands analytic consideration in its own right, 10 the more lawyers would see how narrative discourse is never innocent but always presentational and perspectival. 11
Few things reveal the power and truth in Brooks\u27s call for a narratology in the law more than the line of U.S. Supreme Court cases concerning affirmative action in higher education. This year, in two cases that colleges and universities closely watched, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina,12 the U.S. Supreme Court issued a joint opinion that reshaped nearly fifty years of precedent on race and admissions, holding that Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment in their use of race in their admissions processes.13 In so ruling, the Court offered a moment of narrative peripeteia, a reversal that forces a re-reading, an anagnorisis or recognition that makes the past bathe in a different light. 14 That rereading, specifically the re-reading of the line of opinions that culminated in the decision in the Students for Fair Admissions, Inc. (SFFA) opinion, highlights two critical revelations about the Court\u27s jurisprudence on race-based affirmative action in higher education.
First, the re-reading reveals how Chief Justice Roberts has forced a new understanding of what the Equal Protection Clause requires in the affirmative action landscape by revising history, precedent, and reality through omissions, misstatements, and untruths. Second, the re-reading exposes how the perspectives of telling and the narrative glue 15 in SFFA are rooted in what Professor Barbara Flagg defines as the transparency phenomenon, meaning an invisibility of whiteness, racism, and racism\u27s everyday impacts for everyone, whether advantaging or disadvantaging, to white people. 16 Specifically, it shows that the doxa that Chief Justice Roberts relied on in crafting the majority opinion - the set of unexamined cultural beliefs that structure[d] [his] understanding of everyday happenings 17 - involve a simplistic understanding of race and racism that is not grounded in the substantive realities of life for people of color. Such doxa include beliefs (1) that race is not socially constructed and is defined only by skin color; (2) that racism is aberrational; (3) that Jim Crow racism 18 is the only racism that law should redress; (4) that racism is so obvious that people of color, including teenagers applying to college, will know all the ways that they are being discriminated against to discuss them in their essays; (5) that treating people equally and with equality requires treating them all exactly the same without accounting for history and context; (6) that the traditional means for measuring merit in admissions are race neutral and do not systemically advantage white people; (7) that white people do not still benefit from discrimination that occurred prior to Brown v. Board of Education;19 (8) that affirmative action creates preferences for Black 20 and Latinx 21 people; and (9) that he and his majority colleagues are simply call[ing] balls and strikes 22 (as opposed to choosing how to rewrite past precedent and which facts to emphasize and ignore).
This Comment seeks to guide readers through this narratological rereading by offering a critical examination of SFFA. Part I of this Comment provides a brief account of narratology, storytelling, and their imports. Part II delves into the doctrine of affirmative action in higher education, detailing the assumptions - the doxa - underlying the decision in SFFA and highlighting how the Chief Justice revised history, precedent, and reality to craft new doctrine about what the Fourteenth Amendment requires of colleges and universities in their admissions processes.
Part III then reveals a major danger in the majority\u27s presumption that the suppression of an applicant\u27s checked racial-identification box or boxes will somehow remove racial considerations in all aspects of an applicant\u27s file review except the essay portions. It does so by highlighting how race, a social construct,23 and the effects of racism are frequently present in considerations of every applicant\u27s file, whether or not an applicant\u27s self-identified race is explicitly known by admissions-file reviewers. More importantly, Part III shows why the Court\u27s move away from explicit race consciousness in admissions will work to deepen rather than lessen the impacts of racial bias. Specifically, Part III utilizes social science research to demonstrate why refusing to explicitly acknowledge race and, in fact, trying to suppress considerations of race will actually make it impossible to remove implicit, as well as explicit, racial bias from the admissions evaluation process. Implicit bias research reveals that making race salient in the assessment of people - as is done with the review of admissions files during a holistic review process - may be a necessary precursor to reducing the effects of nonconscious racial bias.24 Furthermore, much like scholars such as Professors Devon Carbado, Cheryl Harris, Jonathan Feingold, and Stacy Hawkins have done and as Justices Sotomayor and Jackson did in their SFFA dissents, Part III argues that the discontinuation of the use of race in admissions will actually result in further racial discrimination against applicants of color, particularly Blacks, in the admissions process.25 Finally, this Comment concludes with lessons on how future stories about race, racism, education, and admissions can and should be reframed to ensure a truly equal society for all
Forging a Future Title IX
Get PDFTitle IX is in transition. Fifty years after its passage, Title IX is at the center of multiple culture wars, notably those around the definition of sex1 and the contours of due process2 in schools. Since 2011, the federal Department of Education (“ED”) has issued multiple guidance documents, containing widely divergent obligations for schools.3 In the last decade, the meaning of Title IX has been highly contested, appearing sometimes more dependent on the administration in power than on the statute’s text and purpose.4 This pendulum swing has diverted attention away from Title IX’s core goal: equal access to education based on sex.
Title IX’s fiftieth birthday is an ideal moment to step back from the culture wars and reflect on what the future could, and should, hold for Title IX. How can we effectuate Title IX’s promise of equal education under law? How do we marry the promise of a statute written fifty years ago with the reality of today, one in which definitions of sex and what constitutes discrimination have so radically changed? Additionally, how can a civil rights statute that tackles discrimination one identity at a time, here sex,5 remedy the intersectional harms that are endemic within the educational system? In this essay, I focus on these questions through the lens of Title IX, sexual assault, and the obligations placed on post-secondary schools (“schools”)
Competing for Talent: Large Firms and Startup Growth
Get PDFThis paper explores the impact of large firms’ hiring in local labor markets on the salaries offered by startups and on startup growth and performance. We analyze firm data matched to help-wanted ads and find strong evidence of “crowding out.” A standard deviation increase in the share of ads posted by large firms raises startup pay offers by 5-10% for critical managerial, STEM, and sales jobs, and it reduces expected startup growth by 36%. Crowding is diminished by employee mobility and by spillovers to startups in closely related businesses. It is increased by big firm markups, which may have a large effect on startups. Results are robust to a shift-share instrumental variable strategy. Crowding has important implications for firm strategy, regional policy, and for understanding the slowdown in the aggregate growth of startup firms
Inflation, Market Failures, and Algorithms
Get PDFInflation is a problem of tremendous scale. But the leading response to inflation-raising interest rates-also poses economic risks. Raising interest rates rapidly may increase unemployment and heighten the chance of recession. This Article argues that there is a better way to think about antiinflation policy. Rather than defaulting to interest rate hikes that harm markets, policymakers should prioritize laws that lower prices while improving markets. Most importantly, there is evidence that businesses have raised prices by colluding with one another, exploiting consumers\u27 behavioral and informational limits, and lobbying for protectionist laws that block competition. Artificial intelligence pricing algorithms and dark pattern online manipulation tools have further enhanced businesses\u27 ability to charge higher prices. Although those preexisting market failures did not cause the high levels of inflation that began in 2021, they create new inflation challenges and opportunities.
A key challenge is that in an era of automated pricing algorithms and market failures, direct solutions to inflation, like the end of the war in Ukraine, may not bring the full level of lowered prices that would be otherwise expected. Fortunately, market failures now also provide an inflation-fighting tool that would not otherwise exist-like a piggy bank of market improvements that the law can break open to offset some portion of inflation. Interest rate hikes would surely still be needed, perhaps to address the bulk of inflation, but avoiding even a small amount of economically harmful rate hikes is still worthwhile. Many of these market improvement opportunities lie in existing administrative agency authority, but considerably more could be done through new legislation, such as a wide-ranging Price Transparency Act. Moreover, these legal reforms are desirable independent of inflation because they would improve efficiency. Thus, policymakers should resist the urge to rely solely on interest rate hikes that destroy wealth and should instead simultaneously pursue legal rules that promote prosperity. Doing so could even transform a grave crisis into a tremendous economic opportunit
Against the Chenery II Doctrine
Get PDFThe Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, or property. The subdelegation concern is present even if, as we assume in this article, Congress has some authority to subdelegate a measure of legislative power. Congress can only subdelegate power that it possesses, and Congress possesses no power to deprive people of rights through adjudication, so agencies cannot receive such power from Congress. Nor do agencies have any inherent executive power to deprive people of rights through adjudication; that principle is the essence of due process of law.
We treat these constitutional concerns as a reason to read statutory authorizations to federal agencies narrowly to create a presumption against, rather than for, agency power to make law through adjudication. We also take a close look at the Chenery II case, including close looks at the arguments of counsel and the correspondence of the Justices, to show how a narrower reading of Chenery II is both possible and desirable. Finally, we examine some of the consequences of a narrower reading of Chenery II. Those consequences are both modest and consistent with rule-of-law values
Justices Citing Justices
Get PDFScholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one article focusing on the self-citation practices of justices, however, the scholarly literature has not focused on these questions. Until now, that is. In this Article, I provide the first empirical analysis of how often justices on the modern court cite the law review articles and books of other justices. The most interesting findings revealed in this section of the Article include the fact that Justice Scalia was by far the justice whose academic work has been cited most often by other justices in the modern era, and that Justice Thomas is the justice who most often cites the academic work of other justices. In the second part of the Article, I address the question of why justices cite the academic work of other justices. These reasons include paying honor or homage to other justices, scolding other justices for not following the teachings of justices they claim to be allied with, and, most controversially, pointing out how other justices have departed from their previous personal precedent or the personal precedent of purported judicial allies. The Article argues that this latter rationale for citing the work of other justices is inappropriate and more well suited to teenagers and Twitter trolls than high court judges
England in the Fifteenth Century
No full textReaders of this chapter might be left with doubts whether England had a constitution in the fifteenth century and whether, if there was one, it underwent any significant change over the century. Difficulties in governing the realm, ambiguities about power and authority, and a fundamental lack of consensus about what constituted and who had a legitimate right to rule persisted from the opening years of the period through to its end. The only notable progress recounted here was in procedures and practices in parliament. This difficult century left England with a hunger for new assertions of power and authority in the succeeding one
Judicial Resistance to New York\u27s 2020 Criminal Legal Reforms
Get PDFScholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.22 There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.23 These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and lack of resources of trial courts.24 Scholars have focused on overlooked consequences or unexpected effects that the drafters failed to properly account for.25 But as discussed by Malcolm Feeley, reforms also fail due to the judiciary’s intentional mis-implementation of the legislation. In such instances, reforms fail not because those who planned the reform or those who wrote the law did not account for certain unintended consequences, but because the judges who must give force to the reform do not agree with the intended consequences.26
This paper seeks to build on the scholarship of judicial organizational culture and examine a significant example of the phenomenon of judicial resistance in the context of New York’s 2020 criminal legal reforms. These reforms implicate the legislature’s curtailment of judicial discretion to accomplish the reform’s goals. This provides a unique opportunity to identify intentional judicial obstruction, and how and why it is carried out. Placing the judicial response within the scholarship would be illuminating in reexamining Feeley’s and others’ theses and in expanding the premises to current real-world reforms. This examination reveals how the New York judiciary’s organizational culture makes it particularly susceptible to narratives concerning public safety, which forms a significant motivation for judicial obstruction to reforms.
Part I creates a framework to define whether these judicial interpretations are obstructionist and to provide some background on both the nature of obstruction and its possible causes. Part II examines specific examples of when judges circumvented the reforms and looks to New York’s judicial culture to see if it can account for how and why this obstruction occurred. Part III examines whether any larger lessons or solutions can be learned for future criminal legal reforms to anticipate such impediments and preemptively address them